Judgment

SHAH, J. : Respondent in this appeal is the owner of a building used as a cinematograph theatre. By a registered deed, dated December 23, 1960, the appellant obtained a lease of the theatre at a monthly rental of Rs. 1,801. The appellant applied under S. 11 of the Saurashtra Rent Control Act 22 of 1951-hereinafter called the Act -for an order fixing the standard rent of the theatre. He submitted that the rent stipulated to be paid under the lease was "excessive, exorbitant and improper" and that the standard rent of the theatre, having regard to its situation and size and the amenities provided therein, could not exceed Rs. 350 per mensem. The respondent by his written statement submitted that the rent stipulated under the lease was reasonable.

2. The Court of First Instance fixed the standard rent of the whole theatre at Rs. 1,030-12-0 being the one-twelfth of the gross return at 6 per cent on the cost of construction of the theatre and the cost of furniture installed therein. But the learned Judge held that the respondent had not delivered to the appellant possession of the basement and of a part of the building which was intended to be used for a restaurant, and on that account reduced the standard rent payable by the appellant by Rs. 220.

3. Against the order of the Civil Judge, the respondent preferred an appeal under S. 28 (1) of the Act to the District Court, Gohilwad, and the appellant preferred cross-objections to the order appealed from. The District Court agreed with the Trial Court that the cost of construction of the building and cost of the furniture was Rs. 2,06,150, and held that standard rent should be fixed on the basis of a return of 7 per cent of the cost of the building and furniture, and on that footing computed the standard rent of Rs. 1,200 Per mensem. The District Court further held that possession of the space reserved for a restaurant was delivered to the appellant and since about June 1952 it was in the appellant s occupation. It was, however, common ground between the parties that possession of the cellar was not delivered by the respondent to the appellant. It was the case of the respondent that the cellar was not included in the premises let out. It was the case of the appellant that it was so included. On the view that the cellar was not included in the tenancy, the District Court directed that standard rent of the premises in the occupation of the appellant be fixed at Rs. 1,150 per mensem.

4. Against the order of the District Court, second appeal No. 552 of 1959 preferred by the appellant to the High Court of Judicature at Bombay was by order, dated March 30, 1959 dismissed under O. 41, R. 11 (1) of the Code of Civil Procedure. The respondent also preferred an appeal to the High Court. For reasons which we are unable to ascertain this appeal was not made ready for hearing before the Bombay High Court and on reorganisation of the State of Bombay that appeal was transferred to the High Court of Gujarat and we were informed at the Bar that the appeal is now pending before that High Court.

5. Against the order of the Bombay High Court dismissing his appeal, the appellant has appealed to this Court.

6. It is somewhat unfortunate that the appeal filed by the respondent has been admitted to the file and is to be heard on the merits, while the appeal filed by the appellant was summarily dismissed. Counsel for the appellant submitted that we should set aside the order of the High Court of Bombay, since a second appeal under S. 28 of the Act lay to the High Court on a question of fact as well as of law, and as there was "voluminous evidence" on the record which had to be considered in determining the appropriate standard rent, the High Court of Bombay committed a grave error in summarily dismissing the appeal. We are unable to agree with that plea.

7. Section 28 (1) of the Act provides :

"Notwithstanding anything contained in any law, but subject to the provisions of the Provincial Small Cause Court